Domestic Violence in the Spotlight

May 17, 2012

The overnight hit television show Glee has become extremely popular with its teenage audience. The show follows a group of fictional high school students as journey through their teenage years. One of the show's attractions is its many singing and dancing numbers performed by the students for their glee class. Glee's most recent episode entitled "Choke" featured a more serious topic, domestic violence. Harsh criticism has followed the show's depiction of this important cause, one critic stated "Choke is a morally reprehensible hour of television, one from which the show many never fully recover." The most common complaint from viewers and supporters of the fight against domestic violence is that the show gave the topic an "insultingly short shrift".

Glee attempted to shed some light on various misconceptions about domestic violence. The victim in this episode is the loveable "Coach Beiste". Beiste is a large and masculine woman who always had trouble finding a date because of her macho nature. She is the coach of the boy's football team for the high school and is often seen lifting weights and screaming at the players. Recently Beiste married Cooter Menkins, a well-liked football recruiter. Regardless of size, shape, appearance or gender any person can be victimized by domestic violence. In fact, because so many instances of domestic violence go unreported, it is difficult to get a clear understanding of what is exactly going on behind closed doors. Throughout the United States only one out of every four incidences of domestic violence get reported.

The episode portrayed one incident in which, out of an alcoholic rage, Cooter punched Coach Beiste and gave her a black eye. Alcoholism, drug abuse and addiction in general are often researched in connection with domestic violence. Although researchers debate the actual percentage of domestic violence incidents, which are fueled by substance abuse, generally many batterers admit they consumed alcohol or abused illegal drugs on the day of the incident.

Like many victims who do not want to disclose incidents of violence, Coach Beiste told her coworkers and students that she got her black eye in the gym from a punching bag. Victims hide their injuries for a number of reasons including, but not limited to fear of the abuser, judgment from friends and family, in efforts to protect their abuser, out of a belief that police and other agencies cannot help them. San Diego offers many resources throughout the community that specialize in helping victims of domestic violence. The San Diego Family Justice Center is a one-stop-shop for all victims regardless of whether they are ready to leave their abuser.

The key to understanding the crime of domestic violence is recognizing that it is a deliberate pattern of abuse that results in a cycle. Throughout the cycle, the couple rotates through many stages and these stages can appear in any order and possibly occur all in one day. Generally in the cycle there is a tension-building stage where the abuser is becoming angry and the victim may feel as if he or she is walking on eggshells in the relationship. Next an incidence of violence including emotional, physical or sexual violence can occur as a result of the mounting tension. Following the violent incident the abuser is likely to apologize and promise it will never happen again or blame the victim for the incident. The next stage typically is called the honeymoon stage or the "making-up" stage where the abuser fulfills most of his or her promises and the victim might believe he or she has changed. The last seen of Glee's Choke episode depicts Beiste returning to her husband after she vowed to leave him. This is not uncommon and a predictable part of the cycle.

Any situation involving domestic violence is dangerous. Please contact us if you have questions regarding the effects of domestic violence on child custody or divorce. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Could Octomom Lose Custody of Her Children?

May 16, 2012

1385006_colorfull_ballons_2.jpgNadya Suleman, otherwise known as "Octomom," is famous for giving birth to octuplets in 2009. In addition to her octuplets, Octomom has six other children. Recently Octomom has been criticized in the news for poor parenting. The controversy surrounded a complaint filed by her hair stylist who claimed that the fourteen children were living in substandard conditions. TMZ has reported that only one toilet is operating in the home, which is supplemented with portable toilets located outside in the backyard. According to Suleman, she could not afford to repair the other toilet in the home because the quote of $150 was too expensive. In addition to living in an unsanitary environment, the hair stylist provided photos that suggest the children were locked in a room while Suleman had her hair done.

These images have allegedly sparked an investigation by Child Protective Services (CPS), which will determine whether the children are at risk of any substantial harm. The photos depict a messy house with writing on the walls. The hair stylist has also provided photographs of the outdoor toilets. CPS has responded by saying that a messy house does not violate any law and methods of potty training are within the parent's discretion.

If CPS determines that the children should be permitted to remain in the home up to 12 months of services may be provided to the family in order to improve conditions for the children. If CPS determines that the children are in danger, it will file a petition in Juvenile Court and ask that the children be removed from Suleman's home. If the children are removed, they may be placed with a relative or in foster care depending on the particular circumstances. Further, Suleman will need to take parenting classes and counseling if she wished to reunify with her children. Up to 18 months of services will be provided if a parent is making efforts toward reunification. If she does not satisfy the court's concerns, the children could be placed with a legal guardian or even adopted by another person(s).

Like the hairstylist did in the Octomom case, community members have the opportunity to report suspected abuse or neglect of children. Under California law child abuse includes any of the following: the non-accidental physical injury of the child, willful cruelty or unjustifiable punishment, sexual abuse, and neglectful abuse including failing to provide adequate food, clothing, shelter, medical care or supervision.

In any child custody case the most important consideration is the health, safety and welfare of the child. If one parent is not addressing these concerns, typically his or her time with the child is reduced and the child spends more time with the more adequate parent. However, the Suleman case involves a different scenario. Suleman underwent in vitro fertilization and the children do not have a father recognized by the family court system. Therefore, governmental agencies may become involved in ensuring the children are properly cared for.

Please contact us if you have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Reese Witherspoon Fights Father's Bigamy Charges

May 15, 2012

Award-winning actress Reese Witherspoon appeared in Nashville's probate court on May 11, 2012 to address allegations against her father, John, for bigamy. Witherspoon informed the judge in an emergency hearing that her father should be placed under a conservatorship due to his alcoholism and on-set dementia. The judge has yet to rule in this matter but has sealed the case against media/public access in interest of the parties' privacy.

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Witherspoon's parents separated in 1996; however, the couple never officially divorced. As a result, Witherspoon's mother, Betty, filed a lawsuit claiming that her husband recently married another woman. However, Betty claims that he was not mentally stable enough to remember the marriage and denies entering into it. In addition, Betty has filed a restraining order/injunction against the purported "new wife" which prohibits her from using the last name of "Witherspoon".

According to California marriage laws, a married person is prohibited from marrying any other person besides his or her spouse. If a married person enters into another marriage with a person besides his or her spouse, he or she may face criminal bigamy charges. Under bigamy prohibitions, John's subsequent marriage would be void. Betty is requesting that the alleged marriage between John and his new wife be annulled.

As we have previously blogged, determining whether a couple has in fact separated is a question of fact. The court will take into consideration factors such as whether: the couple continues to purport to be married, the spouses live separate and apart, either spouse engages in romantic conduct, either spouse continues to perform martial duties, finances are commingled, and the couple attend social gatherings together.

Betty Witherspoon claims that she is still in love with her husband and that she did not want to file for divorce. Additionally, she claims she has regular contact with her husband. However, John's new wife has moved in with him and allegedly convinced him to change his will. Despite this evidence that the couple had not separated in 1996, a court will likely determine that they have considering the strong evidence that John intended the marriage to be over when he began residing with another woman and even attempted to bring her to social gatherings like Reese's wedding.

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Usher's Child Custody Confessions

May 12, 2012

Famous R & B artist Usher is currently litigating a hotly contested custody case with his former wife Tameka. Tameka and Usher were married for two short years before Usher filed for divorce in 2009. Currently the couple shares joint custody of their two young sons. On Tuesday May 1, the pair attended a court hearing in Georgia where the judge ordered them to work out some type of agreement "or else." The judge instructed them to attempt to reach a temporary child custody and visitation arrangement in a private mediation setting. If they were unable to reach an agreement, the judge would impose a temporary order upon Usher and Tameka. In this case, the two would have no control over the outcome.

It is common in the San Diego family court system for a judge to order parties to attempt reaching a mutually acceptable agreement. Negotiating and mediating disputes, especially those regarding child custody, result in less turmoil in an already hostile situation. This approach tends to promote cooperation and a healthy co-parenting relationship between the parties that is in the best interest of the child. However, when domestic violence is involved in a case, party negotiations will be ineffective and unsuccessful.

Harsh mudslinging has been a common tactic throughout the Raymond custody dispute. Tameka has accused Usher of being behind in child support payments in the amount of at least $34,000. Tameka has also alleged that Usher is an unfit father because he has a habit of doing drugs, specifically prescription pills, in front of their children. As a result of this allegation, she has requested Usher be ordered to undergo drug testing. Usher has denied any drug use and in addition is requesting more time with his children. We have recently blogged about the divorce and the effects on children. In order to promote stability in the children's lives, many resources are available to divorcing couples or adverse parties in custody disputes.

Last year, Tameka requested that the court reduce Usher's custody and visitation rights to their two sons. The children are still very young, the oldest, Usher V is four years old and the youngest, Naviyd, is just three years old. In order to be successful in a child custody and visitation modification motion, the requesting party must show the court that a significant change of circumstance has occurred since the previous court order. One popular ground for this request is that the other parent has become unfit in such a way as to render him or her an ineffective or inappropriate parent. As Tameka has alleged here, drug abuse is a common allegation that, if proved, may result in a change of custody.

Tameka is now requesting a modification in the current child support order. She alleges a "substantial change" in Usher's income since their divorce proceeding. First, in order to collect the unpaid child support, Tameka must be able to prove that Usher in fact had an obligation to pay that support and did not pay it. In San Diego, the Department of Child Support Services is an excellent resource for parents who wish to enforce a current order to collect unpaid support. However, custody and visitation are completely separate from child support orders. If Usher in fact is behind on support, Tameka must still allow him his court-ordered time with the children.

Please contact us if you have questions regarding custody and visitation and/or divorce. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

FAQ: Family Court Services Mediation in San Diego

1. What is FCS Mediation?

Family Court Services (FCS) provides child custody recommended counseling in family law cases when separating or divorcing parents cannot agree on a child custody sharing plan. Child custody recommended counseling is provided in a private counseling office with a trained court counselor. The FCS conference allows both parents to work together toward a mutually acceptable agreement which is in the best interest of their children. The court counselor will evaluate the case and make a recommendation to the Judge regarding child custody and visitation if the parents are unable to reach an agreement.

2. Is mediation required?

In any dissolution matter regarding child custody and visitation where there is a dispute, Family Code section §3170 mandates that the case be set for child custody recommending counseling prior to the court hearing. Mediation has been required in California for divorcing parents regarding child custody and visitation since 1981.

3. What topics will be discussed in Mediation?

The main topic is child custody and visitation. This includes legal custody and physical custody arrangements. In making a parenting plan, topics such as birthdays, holidays, and summer vacation can be determined by a visitation schedule agreed upon by the parents. Topics such as child support, spousal support, and property division are not usually addressed but agreements can be drafted through your attorney if decided upon mutually by the parents.

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Four ways to approach your divorce in San Diego

Divorce is never easy, but it is nice to know you have options. You can approach your divorce in four different ways, each of which has their pros and cons. Make sure to select an option that is right for you. No two marriages are the same and therefore, no two divorces will be the same. Just because something worked well for someone else does not mean it is the best option for you and your family. In any case, you should consult an attorney before filing the final paperwork with the court.

1. Do it yourself Divorce

Most attorneys would advise against doing the divorce yourself. The reason for this is that divorce can be very complicated and a single mistake can cost you a lot. Doing it yourself may save you the time and expense of getting an attorney, but you may not get the best result in the end. Because divorce often includes emotions, finances, property, assets, and important decisions about children, it is recommended that you get an attorney in a long term marriage. However, if you have a short term marriage that was only 1 or 2 years, don't have any assets or property, and no mutual children, doing a divorce yourself may be your best option. Nevertheless, it is still highly recommended that you have an attorney look over the final documents just to be sure you didn't miss anything.

Pros- doing it yourself may result in you:
• Reducing expenses by not having to hire an attorney.
• Saving time by not having to go to court as often.
• Being in control of the process.

Cons- doing it yourself may also result in you:
• Not getting the best outcome.
• Losing time with your children.
• Missing out on financial support.
• Failing to discover hidden assets.
• Not having legal support in court.

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Cohabitation Agreements - A New Family Law Trend

April 27, 2012

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Many San Diego couples are deciding to skip the marriage ceremony before they move in together. Unlike married couples, these cohabitating couples are not well protected if a split occurs. More and more unmarried couples are considering entering into prenuptial or cohabitation agreements in order to control the outcome of a breakup.

A cohabitation agreement is a legally binding contract that is drawn up by an attorney. The parties to these contracts are seeking similar rights as those afforded to married couples. These couples find it much easier to agree on important issues before the relationship is over and the parties have potentially bitter feelings toward each other. Couples address many issues in cohabitations agreements such as: property division, support, and custody of any pets. One major motivation to enter into a cohabitation agreement is the acquisition of property. An unmarried couple interested in purchasing real property together or that agrees to have one spouse move into the house of the other will face many difficult decisions. A cohabitation agreement can define the rights and responsibilities of both parties

In San Diego, family courts will not honor agreements between parties prospectively limiting future rights to child support, child custody and visitation. The health, safety and welfare of children are matters of public policy in California therefore the State refuses to limit a child's access to financial support or a relationship with a parent.

Currently most states, including California, do not recognize common law marriages. Throughout the states that do recognize or have recognized common law marriage the requirements of a common law marriage differ. Generally a common law marriage exists if:

(1) both parties hold themselves out to be husband and wife;
(2) both parties consent to the marriage;
(3) the parties are cohabitating;
(4) the parties have a reputation throughout the community of being married.

Because common law spouses are given rights where common law marriages are recognized, unmarried cohabitants may be under the misconception that they are also entitled to "marital rights" in the State of California. Even if a couple satisfies all four of the usual elements to establish a common law marriage in California, they will not be entitled to any additional rights.

One area where courts have begun to recognize some rights and protections between unmarried cohabitants is in the area of support. This trend, which began in the 1970's with the Marvin v. Marvin case, is commonly known as "palimony." Under this area of family law, a judge may order one former cohabitant to provide financial support to the other if certain elements are satisfied. Unlike support ordered to a former spouse, "palimony" seems to have a strong basis in contract law. If one party promises to support the other that promise may be enforced as a binding contract. A cohabitation agreement is not so different than a "palimony contract" because both result in the enforcement of an agreement reached by two parties before the end of the relationship.

Please contact us if you have questions regarding custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Domestic Violence at the Mexican-American Border

April 27, 2012

One key aspect of a domestic violence relationship is the cycle of power and control. San Diego community service programs such as the San Diego Family Justice Center recognize this cycle of abuse and help victims break through the destructive pattern. One method of control often utilized particularly by domestic violence abusers in San Diego is immigration status. San Diego's location so close to the Mexican-American border is an ideal place for many Mexican immigrants. Further, some immigrants are native Spanish speakers and are unable or struggle to understand and/or speak English. Many abusers exploit this language barrier as a tool to maintain control over their partners. Because immigrants fear deportation and are uninformed regarding various United States' laws and regulations in place to protect them, they feel trapped and continue to remain in abusive relationships.

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Domestic violence abusers use one or a variety of methods to use immigration status as a tool to manipulate and control their victims. First, the batterer may promise to file papers to legalize the immigration status of his or her victim. Once the victim believes he or she may have a chance to become a legal citizen, the batterer may fail to file, withdraw or threaten to withdraw the necessary paperwork. The victim's immigration status becomes a weapon used against him or her. Congress passed the Violence Against Women Act (VAWA) in order to help domestic violence victims through this form of abuse by providing them with a method of gaining citizenship independent of their abuser. Although the act is entitled the Violence Against Women Act, men may also apply for relief under VAWA provided they satisfy the eligibility requirements. Under the act, a victim may apply for permanent-resident status and neutralize the fear of deportation.

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New Bill May Change San Diego Custody Laws for Military Parents

April 20, 2012

We have previously blogged about the impact military orders can have on a San Diego parent in a child custody case. Recently, the House Armed Services Committee is considering ways to enhance the provisions in place that protect the parental rights of service members. The Servicemember Family Protection Act is designed to preclude family court judges from ruling against servicemembers based solely on a history of or future deployment in child custody cases. Originally introduced in 2008, the bill has passed the House of Representatives with support from both the Democratic and Republican parties but has repeatedly failed in the Senate. The Defense Department has rejected this bill in favor of passing similar legislation at the state court level.

Often in California child custody cases the family court judge will scrutinize a parent's absence from the child's life. However, servicemembers may be deployed for extended periods of time and have little to no contact with their children. The Servicemember Family Protection Act is intended to excuse a parental absence due to military orders. It is important to note that the bill will not give servicemembers any advantage in child custody cases or hearings, it will only function to remove the disadvantages servicemembers are facing in these proceedings.

Traditionally, deployment has been understood as the movement of military forces from one area to another or sending military personnel into a combat zone. The Servicemember Family Protection Act defines deployment much more broadly for the purposes of child custody proceedings. For the purposes of the bill, deployment would include humanitarian operations and unaccompanied oversee tours as well. The bill has been proposed as an amendment to the Servicemembers Civil Relief Act. The Servicemembers Civil Relief Act was passed as a federal law, which granted special rights to servicemembers who were part of a civil proceeding. In 2008, Congress extended these privileges of the Civil Relief Act to child custody cases. The bill now prevents family courts from making permanent changes to custody orders while a servicemember parent is deployed.

The proponents of the Servicemember Family Protection Act argue that the rights granted by the Civil Relief Act do not go far enough to protect the parental rights of servicemembers. Because family court judges have the power, upon return of a servicemember, to deny him or her custody rights based on his or her employment, the proponents contend a change is needed. This is the scenario discussed by our previous blog. A servicemember deploys and the child begins to reside with the other parent who is temporarily granted full-time custody rights. Upon return of the servicemember, the child is well settled into his or her new routine. Therefore, the family court judge is hesitant to return to the previous court orders in place before the deployment.

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In order to facilitate a smooth transition for the child when one parents leaves on a deployment, it is important for both parents to work together. The servicemember should communicate with the other parent regarding the terms of his or her deployment and attempt to make custody arrangements. A functioning co-parent relationship is key for parties furthering the best interest of the child in a custody case.

Please contact us if you have questions regarding custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Will Kim Kardashion pay Kris Humphries' Attorney fees in CA?

TMZ.com reports that Kris Humphries has filed legal documents in his divorce case appointing himself as his own lawyer. Now certainly Humphries, who also according to TMZ.com, makes $8 million dollars a year with the New Jersey Nets, can afford a lawyer. But what if he couldn't afford a lawyer? Could he request that Kim Kardashian pay his attorney fees and costs?

When one party has a need for attorney fees and costs, and the other party has an ability to pay (or make a contribution to) those attorney fees and costs, the court may grant an attorney fee request.

A new California Rule of Court governs requests for attorney fees and costs based on financial need as described in FC sections 2030, 2032, 3121, 3557 and 7605.

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Divorce & the Effects on Children Part 2

As mentioned last week, statistics show that approximately 50% of marriages will end in divorce. Now that divorce is so prevalent in today's society, we need to find effective ways to minimize the negative effects on children and maximize family support and encouragement through this tough time. Listed below are three proposed solutions that you as a parent can do to help reduce the negative effects divorce may have on your children. Not one solution by itself will eliminate the problem, but a combination of them may significantly decrease the negative effects divorce has on children. These solutions include: divorce education and co-parenting classes, divorce mediation, and family counseling. Also your attorney can engage in collaborative practice of law to further assist in making the divorce process easier on children.

Education Programs

A recent study indicates that 46 states currently offer some version of a parent education program. Some jurisdictions also offer classes for children coping with their parents divorce and a few jurisdictions offer parallel classes for both parents and children. For example, in San Diego, there is a program for children called KidsTurn. Some of these programs are court mandated or recommended by the judge, while others are voluntary. These classes can last anywhere from a few hours in one day up to eight weeks. Many of these programs reported positive findings such that parents either reported decreased interparental conflict or decreased re-litigation.

These education programs aim to do the following: 1) inform parents how children usually respond to divorce; 2) alert parents to the negative effect of conflict and their harmful behaviors on children's adjustment both in the short and long term; 3) discuss benefits of, and skills needed, to build a cooperative or parallel parenting relationship; 4) focus parents on the needs of children for an on-going relationship with each parent; 5) teach positive parenting behaviors and appropriate discipline; 6) discuss the process of adult adjustment to divorce and how to cope with this change; 7) focus on responsibilities of each parent to the children; and 8) describe helpful court processes, such as mediation. This can completely change a person's parenting style and their relationship with their ex spouse and their children.

Co-parenting Classes

Cooperation between parents after divorce includes frequent communication about the child, coordination of routines across households, the ability to resolve differences in a mutually satisfactory manner, and respect for and support of the other parent's relation with the child. In order to accomplish these things without conflict, it is useful for parents to attend co-parenting classes together. These may be court mandated by the judge or taken voluntarily by the parents.

Co-Parenting has been used in a variety of ways to refer to the degree to which the ex-spouses share the parenting role. These include: joint problem solving skills and joint decision making concerning the child's welfare, low levels of conflict around parenting issues, building communication and trust, and also sharing in joint responsibilities. Programs have reported positive findings such as decreased inter-parental conflict, increased encouragement with other parent's involvement, trust for the other parent's ability to parent the child, and decreased re-litigation. About 80% of judges report that these classes helped parents agree on custody arrangements before coming to court and decreased re-litigation of those who had already been in court.

Continue reading "Divorce & the Effects on Children Part 2" »

Military Deployment and San Diego Custody Cases

April 12, 2012

San Diego is known for having a vast military community. Among the many military bases in San Diego County are the Marine Corps Air Station Miramar, the Marine Corps Base Camp Pendleton, the Naval Base Coronado, the Naval Base San Diego, and the Naval Base Point Loma. In fact, the Naval Base San Diego is the largest base of the United States Navy on the west coast. Having a parent in the military can bring out a new set of child custody and visitation complications. It is important to consider possible deployments when creating any parenting plan.

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California Family Code section 3047 directly addresses a parent's military obligations, "a party's absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party's activation to military duty...or military deployment out of state." Under this statute, one parent may not use the other's military duties against them in a child custody proceeding. If the sole or joint physical custodian is required to move a substantial distance or is otherwise unable to exercise his or her custodial rights, the court may order a temporary modification in custody. Once the military parent is able to resume his or her custodial duties, the temporary order is subject to review. However, there shall be a presumption that the previous order will resume in place of the temporary modification. This presumption can be overcome if the court finds it is not the best interest of the child.

The best interest of the child is the controlling theme throughout San Diego family law. The court considers a number of factors and makes determinations of custody and visitation. Among the factors the court will consider are:

(1) The health safety and welfare of the child;
(2) Any history of domestic violence;
(3) The nature and amount of contact the child has with both parties; and
(4) The use of drugs or alcohol by either party.

These factors will be carefully weighed by the judge against the presumption that the custody order shall revert to the order in place prior to the modification. In a recent San Diego custody case, these two considerations were not aligned making a tough decision for the family court judge. In this particular case, the mother was deployed out of the country for the period of two years. At the time of her deployment, her son was five years old and she was his primary caretaker. The child resided with the mother primarily and had weekend visitations with the father. Upon learning of the deployment, the parents agreed to a temporary parenting plan. Father would become the primary caretaker and the child would reside with him with video chat visitations to mother. It is important to note that the parties agreed, upon mother's return, the child would resume living with her and the temporary modification would no longer be in place.

Upon the mother's return from deployment, the father had relocated to and refused to permit the child to reside with her. He argued that the child was now settled living with the father, had made friends in the neighborhood and with his half-siblings, and was performing well in school and his extracurricular activities. The judge was required to weigh the nature and amount of contact the child had with father on a daily basis and with mother infrequently against the military presumption. The mother cited California Family Code section 3047 in her argument but the judge was not persuaded. Upon serious consideration, the judge granted mother reasonable visitation but ordered that the child continue to reside with father. Mother's attorney argued that the judge in this case completely ignored the code section put in place to preserve the parental rights of military parents and ruled contrary to the legislative intent behind the provision.

Please contact us if you have questions regarding custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Settlement in San Diego Divorce Cases

April 10, 2012

The State of Alaska is reforming the way a divorce case proceeds through the court system. The new program named the Early Resolution Project is aimed at resolving divorce cases quickly and efficiently. One distinguishing characteristic of Early Resolution is the emphasis on settlement. Under the program, the Anchorage Superior Court addresses several divorce cases in one afternoon on a biweekly basis. On this afternoon, the parties are give free legal advice and encouraged to reach a mutually beneficial agreement.

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Superior Court Judge Stephanie Joannides envisioned the program as a result of her experience in the Alaskan family court system. She was concerned because many divorce cases are assigned a court date that is several months after the initial filing. This waiting period caused the parties to become firm in their positions and unwilling to compromise. Judge Joannides proposed to attempt to resolve these divorce cases early in the process and has seen promising results. In the first year, eighty percent of cases settled as a result of Early Resolution.

Besides a quick resolution to the case, the Early Resolution program and others like it offer a number of fringe benefits to the parties. Like any case that settles early in the litigation process, a divorce settlement can save the parties a great amount of money. Litigating a family law case in San Diego involves filing fees, court costs and attorney's fees. If a case settles early, the parties will not be responsible for any further costs and fees. Another benefit to dispute resolution is the preservation of the relationship between the parties. Litigation has the tendency to ruin the relationship between the parties indefinitely. However, in family law cases involving children, it is crucial for the parents to maintain a co-parenting relationship. Although the California Family Code is often clear, family court judges have an element of unpredictability. The facts of a case may be disputed and therefore the outcome can be uncertain. If parties reach a settlement they are in control of the outcome of the case. In family law cases, the outcome often has life-changing consequences for both parties. In order to have input in the final decision, the parties much reach an agreement.

The San Diego family court system has a program similar to Alaska's Early Resolution Project. In San Diego, the family court judge will assign the parties a Mandatory Settlement Conference (MSC) date before any case will proceed to trial. Unlike in Alaska, the MSC will occur toward the end of the parties' case. The MSC will take place at the San Diego Superior Court where the parties have been litigating their case. A settlement conference judge will be assigned to the case. These judges are experienced local family law attorneys who have volunteered their time to help parties resolve their cases before trial. Because they have so much experience with San Diego family law, the settlement judges are able to help the parties predict what the judge will likely do at trial and reach a settlement agreement based on the probable outcome. The benefit to reaching an agreement during the MSC is avoiding trial. The parties are able to avoid the cost, time and emotional toll of a trial.

Alaska's Early Resolution Project also relies on local attorneys to volunteer their time to help needy clients. These attorneys are able to get family law experience without becoming entrenched in long drawn-out cases. Before the biweekly court appearance, the volunteers are able to scan the divorce case file and begin to formulate possible solutions for the parties. A MSC is slightly more formal in this respect. The parties to an MSC are required to submit a Settlement Conference Brief to the settlement judge at least five court days prior to the MSC outlining the disputed issues and their proposed solutions.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Divorce & the Effects on Children (Part 1)

Nearly one million children are affected by divorce each year. Parents and families struggle to help children who are experiencing negative effects after their parent's divorce. Psychological and sociological research is widespread with evidence of the detrimental effects that divorce can have upon children after separation. Research has shown that, on average, children from divorcing families more frequently experience behavioral and adjustment difficulties during later childhood, adolescence, and even into adulthood. Children have been shown to exhibit a wide variety of responses to divorce and other family changes; frequently these responses include anger, a sense of loss, betrayal, shame, embarrassment, depression, loyalty conflicts, and guilt.

With about half of all marriages ending in divorce, many children may experience a difficult time adjusting. Studies show that the detrimental effects that parents' divorces may have on their children include: depression, aggression, anti-social and/or self destructive behavior and diminished academic performance. Researchers have identified three factors as the most important predicators of negative effects on children of divorce: 1) instability in the child's life, 2) the absence of effective parenting, and 3) interparental conflict.

Instability

Divorce can be extremely emotional for everyone involved; however, it is important to maintain stability in a child's life. The more stable you can keep the child's life, the better adjusted they will be after their parents get divorced. Stability means maintaining regular contact with the other parent by getting child custody and visitation orders in place. You also want to surround yourself with relatives and friends during this hard time. Stability also means following a familiar day to day routine with the child. This is often challenging because the routine is going to change for the child after the parent's get divorced. A minimum number of transitions after divorce are the most beneficial for the children. If possible, keeping the children in the same school, home or neighborhood, always helps the child relate to some stability. Instability can leave a child feeling confused, alone, and at fault for the divorce.

Ineffective parenting

Parents who are unaware of the effects divorce can have on children or have had on their particular child cannot help them through it. Some parents may not know how to help their children cope or even ways to deal with the divorce themselves. Others may be unaware of resources in their community such as parenting classes and family counseling. It is important for parents to get educated about the effects divorce may have on children and get help for themselves if need be. That way the parents are equip to help a child who is experiencing a difficult time, because ineffective parenting can leave children feeling lonely, hurt, and unloved.

Continue reading "Divorce & the Effects on Children (Part 1)" »

Void, Voidable and Valid Marriages - How These Impact a San Diego Divorce

April 5, 2012

We often blog about the importance of social networking sites as tools in family law cases. Facebook is an invaluable resource for spouses, parents, and family law attorneys to use in order to dig up information on the opposing party in a particular case. Recently, Facebook has surfaced on the family law radar in a new and unexpected way. One of Facebook's well-known features is its ability to suggest family members, acquaintances, or friends that the user may want to "add as a friend" on his or her Facebook page. This friend suggestion tool alerted Alan Leighton O'Neill's wife that her husband was married to another woman. O'Neill's first wife clicked on the Facebook page of his second wife and saw her husband in a wedding photo with another woman. As a result of the friend suggestion tool, felony bigamy charges have been filed against O'Neill.

In San Diego, any married person who marries any other person is guilty of bigamy. Alan Leighton Fulk married his first wife on April 16, 2001. In December of 2011, he petitioned the court to change his name to Alan Leighton O'Neill. This tactic was used in order to accomplish his second marriage only five days later.

Although any married person who marries any other person is guilty of bigamy, various defenses are available to the bigamist. A good-faith belief that the bigamist obtained a divorce or dissolution of the first marriage is a possible defense to bigamy charges. Whether or not the bigamist escapes felony prosecution, bigamy has many family law-related implications.

Under California family law, a subsequent marriage during the life of a former spouse, with a person other than the former spouse, is void unless: (1) the former marriage was dissolved or annulled before the subsequent marriage date or (2) the former spouse is (a) absent and not known to be living to the bigamist for five consecutive years immediately preceding the subsequent marriage or (b) is generally believed to be dead by the bigamist at the time of the subsequent marriage.

There are many legal implications of a void or voidable marriage. A void marriage is invalid at its inception. There is no legal recognition of a void marriage's existence. In addition to bigamy, a marriage may be declared void because one of the parties is a minor, fraud, force, physical incapacity, mental illness or incest. These marriages can be attacked at any time by anyone who has an interest in the marriage. Further, a void marriage cannot be ratified even after the condition voiding it has dissipated. For the purposes of divorce, the parties involved in a void marriage are unable to claim any of the marital rights such as an interest in community property or spousal support available to a party of a valid marriage.

Void marriages are distinguishable from voidable marriages. A voidable marriage is valid for all civil purposes between the parties; it only becomes invalid if it is declared void by a court of competent jurisdiction. It is neither valid nor void and can only be attacked by the parties to the marriage. Unlike void marriages, a voidable marriage may be ratified or validated by the conduct of one or both parties after the condition creating its voidability has dissipated. Interestingly, a voidable marriage may not be attacked after death. Therefore once one of the parties dies, the other stands to inherit from him or her as a standard spouse.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.